State v. Timothy Adkins (073803) , 221 N.J. 300 ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State v. Timothy Adkins (A-91-13) (073803)
Argued December 3, 2014 -- Decided May 4, 2015
LaVECCHIA, J., writing for a unanimous Court.
In this appeal, the Court considers the application of the United States Supreme Court’s decision in
Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), to a case involving a blood draw,
for purposes of determining blood alcohol content (BAC), that took place before the McNeely decision was issued.
In the early morning hours of December 16, 2010, defendant, Timothy Adkins, was involved in a single-car
accident that resulted in injuries to his two passengers. Based on his performance on a series of field sobriety tests
conducted at the scene of the accident, defendant was arrested on suspicion of Driving While Intoxicated (DWI) at
approximately 2:27 a.m. Defendant was transported to the West Deptford Police Department and was advised of his
Miranda rights; he invoked his right to counsel. Although Alcotest equipment was present, no breathalyzer test was
administered at headquarters. Police conveyed defendant to the hospital, and the police obtained defendant’s BAC
test results from a sample, drawn by hospital personnel at police direction, without the police first having secured a
warrant or defendant’s prior written consent. Defendant was issued summonses for DWI, careless driving, and
possession of an open container in a motor vehicle. Subsequently, a grand jury also charged him with fourth-degree
assault by auto for recklessly operating a vehicle while under the influence of alcohol and causing bodily injury.
On April 17, 2013, the United States Supreme Court issued its opinion in McNeely, which held that the
natural metabolism of alcohol in an individual’s bloodstream does not constitute a per se exigency under a Fourth
Amendment search and seizure analysis. 133 S. Ct. at 1568. In light of McNeely, on April 22, 2013, defendant
filed a pre-trial motion to suppress the blood test results. Following a hearing at which only defendant testified, the
court granted defendant’s motion, applying McNeely and finding that the police did not demonstrate exigent
circumstances before securing a sample of defendant’s blood without a warrant.
The State appealed, and the Appellate Division reversed. 433 N.J. Super. 479 (App. Div. 2013). The panel
explained that, prior to McNeely, New Jersey courts, including the Supreme Court, had cited the United States
Supreme Court’s decision in Schmerber v. California, 384 U.S. 757 (1966), as support for the warrantless taking of
blood samples from suspected intoxicated drivers, so long as the search was supported by probable cause and the
sample was obtained in a medically reasonable manner. The panel thus reasoned that McNeely had worked a
dramatic shift in the State’s Fourth Amendment jurisprudence and created a new rule of criminal procedure. The
panel acknowledged that McNeely ordinarily would be applied retroactively to all cases pending on direct review,
but noted that federal law generally does not apply the exclusionary rule when police conduct a search in good faith
reliance on previously binding precedent, and concluded that the exclusionary rule should not be applied here.
The Court granted defendant’s petition for certification. 217 N.J. 588 (2014).
HELD: McNeely’s pronouncement on the Fourth Amendment’s requirements must apply retroactively to cases that
were in the pipeline when McNeely was issued. Accordingly, the Appellate Division’s judgment is reversed. The
matter is remanded to allow the State and defendant the opportunity to re-present their respective positions on exigency
in a hearing on defendant’s motion to suppress the admissibility of the blood test results. In that hearing, potential
dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the
circumstances. The reviewing court must focus on the objective exigency of the circumstances faced by the officers.
1. In the context of the exigent-circumstances exception, the United States Supreme Court addressed the
constitutionality of a warrantless blood draw from a suspected drunk driver in its 1966 decision in Schmerber, 384
U.S. 757. In finding the warrantless blood draw constitutionally permissible, the Court concluded that although a
warrant is typically required for the taking of blood, the officer might have reasonably believed that he was
confronted with an emergency, in which the delay necessary to obtain a warrant threatened the destruction of
evidence. The Court further added that defendant’s blood was drawn by a reasonable method and in a reasonable
manner. Id. at 770-71. (pp. 13-14)
2. Following Schmerber, courts were not in agreement on whether the decision created a rule that the dissipation of
alcohol constituted a per se exigency justifying a warrantless search. To resolve the split in authority, the Supreme
Court granted certiorari in McNeely, where the State of Missouri argued that “the fact that alcohol is naturally
metabolized by the human body creates an exigent circumstance in every case.” 133 S. Ct. at 1567. The Supreme
Court explained that Schmerber never created a per se rule but, instead, had incorporated a totality-of-the-
circumstances test. Id. at 1558-60. Thus, in McNeely, the Court clarified that the dissipation of alcohol from a
person’s bloodstream is not the beginning and end of the analysis for exigency in all warrantless blood draws
involving suspected drunk drivers. Rather, courts must evaluate the totality of the circumstances in assessing
exigency, one factor of which is the human body’s natural dissipation of alcohol. (pp. 15-16)
3. The question before the Court is McNeely’s application to the warrantless drawing of defendant’s blood, which
occurred prior to McNeely’s issuance. In State v. Wessells, 209 N.J. 395 (2012), the Court noted that “federal
retroactivity turns on whether a new rule of law has been announced, coupled with an analysis of the status of the
particular matter, that is, whether it is not yet final, is pending on direct appeal, or is being collaterally reviewed.”
Id. at 411. The Court recognized that if a new rule has been established “for the conduct of criminal prosecutions” it
will “be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Id. at 412 (quoting Griffith v.
Kentucky, 479 U.S. 314, 328 (1987)). Accordingly, in Wessells, the Court applied a new rule of law that had been
established in a United States Supreme Court decision to a case pending review in New Jersey at the time the
decision was handed down. As the Appellate Division found, and defendant and the State acknowledge, this case
calls for a similar result. McNeely represents new law settling an area of criminal practice, thus, under federal
retroactivity law, the decision deserves pipeline retroactive application. The United States Supreme Court has
pronounced the standard to be applied under the Fourth Amendment to warrantless searches involving blood draws
of suspected DWI drivers and, under Supremacy Clause principles, this Court is bound to follow it as the minimal
amount of constitutional protection to be provided. Therefore, in accord with Wessells, McNeely applies
retroactively to cases that were in the pipeline when it was decided. (pp. 16-18)
4. The Court next considers whether the exclusionary rule should have any applicability in suppressing defendant’s
blood test results when the police merely followed an asserted, commonly held understanding of Schmerber’s
requirements in this State. Our State declined to recognize the exception to the exclusionary rule that was first
established in United States v. Leon, 468 U.S. 897 (1984), and has consistently rejected a good faith exception to the
exclusionary rule. This matter deals specifically with police conduct in reliance on case law in New Jersey that led
law enforcement to the reasonable conclusion that the natural dissipation of alcohol from the human body created
exigency sufficient to dispense with the need to seek a warrant. Although the Court’s decisions never expressly
pronounced an understanding of Schmerber that per se permitted warrantless blood draws in all cases on the basis of
alcohol dissipation alone, case law contains language that provides a basis for such a belief. The United States
Supreme Court has now clarified the appropriate test to be applied to warrantless blood draws, and this Court
adheres to that test without any superimposed exception. (pp. 19-23)
5. In these pipeline cases, law enforcement should be permitted on remand to present their basis for believing that
exigency was present in the facts surrounding the evidence’s potential dissipation and police response under the
circumstances to the events involved in the arrest. The exigency in these circumstances should be assessed in a
manner that permits the court to ascribe substantial weight to the perceived dissipation that an officer reasonably
faced. Reasonableness of officers must be assessed in light of the existence of the McNeely opinion. But, in
reexamining pipeline cases when police may have believed that they did not have to evaluate whether a warrant
could be obtained, based on prior guidance from the Court that did not dwell on such an obligation, reviewing courts
should focus on the objective exigency of the circumstances that the officer faced in the situation. (pp. 23-24)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court
for further proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-91 September Term 2013
073803
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY ADKINS,
Defendant-Appellant.
Argued December 3, 2014 – Decided May 4, 2015
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 433 N.J. Super. 479 (App. Div.
2013).
Richard F. Klineburger, III, argued the
cause for appellant (Klineburger and Nussey,
attorneys; Mr. Klineburger, Carolyn G.
Labin, and Rebecca L. Kolsky, on the
briefs).
Ronald Susswein, Assistant Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
Jeffrey Evan Gold argued the cause for
amicus curiae New Jersey State Bar
Association (Paris P. Eliades, President,
attorney; Mr. Eliades, of counsel; Mr. Gold
and Thomas M. Cannavo, on the brief).
JUSTICE LaVECCHIA delivered the opinion of the Court.
We granted certification in this matter to address the
application of the United States Supreme Court’s decision in
Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552, 185 L. Ed.
1
2d 696 (2013), to a case involving a blood draw, for purposes of
determining blood alcohol content (BAC), that took place before
the McNeely decision was issued.
Police arrested defendant, Timothy Adkins, on suspicion of
drunk driving after his single-vehicle car crash caused injuries
to his passengers and he failed field sobriety tests. The
police obtained defendant’s BAC test results from a sample,
drawn by hospital personnel at police direction, without the
police first having secured a warrant or defendant’s prior
written consent.
Following issuance of the United States Supreme Court’s
decision in McNeely, supra, which held that “in drunk-driving
investigations, the natural dissipation of alcohol in the
bloodstream does not constitute an exigency in every case
sufficient to justify conducting a blood test without a
warrant,” ___ U.S. at ___, 133 S. Ct. at 1568, 185 L. Ed. 2d at
715, defendant sought suppression of his BAC results. After a
hearing in which only defendant testified, the court applied
McNeely and excluded defendant’s blood test results. On appeal,
the Appellate Division reversed, declining to apply the
exclusionary rule when officers relied on pre-McNeely New Jersey
case law that had permitted warrantless blood draws based on the
exigency inherent in the human body’s natural dissipation of
alcohol.
2
Consistent with our decision in State v. Wessells, 209 N.J.
395 (2012), we conclude that McNeely’s pronouncement on the
Fourth Amendment’s requirements must apply retroactively to
cases that were in the pipeline when McNeely was issued. We are
constrained to adhere to the McNeely Court’s totality-of-the-
circumstances approach notwithstanding that our case law, like
that of many sister states, had provided de facto, if not de
jure, support for law enforcement to believe that alcohol
dissipation in and of itself supported a finding of exigency for
a warrantless search of bodily fluids in suspected driving-
under-the-influence cases.
Because McNeely must apply retroactively to all cases,
federal or state, pending on direct review at the time of that
decision, we must reverse the Appellate Division judgment.
However, we remand to allow the State and defendant the
opportunity to re-present their respective positions on exigency
in a hearing on defendant’s motion to suppress the admissibility
of the blood test results. We further hold that, in that
hearing, potential dissipation of the evidence may be given
substantial weight as a factor to be considered in the totality
of the circumstances. In reexamining this matter, in which law
enforcement may have relied on prior guidance from our Court
that did not identify an obligation to evaluate whether a
warrant could be obtained, we direct the reviewing court to
3
focus on the objective exigency of the circumstances faced by
the officers.
I.
In the early morning hours of December 16, 2010, defendant
was involved in a single-car accident that resulted in injuries
to defendant’s two passengers. Based on his performance on a
series of field sobriety tests conducted at the scene of the
accident, defendant was arrested on suspicion of Driving While
Intoxicated (DWI) at approximately 2:27 a.m. Defendant was
transported to the West Deptford Police Department and was
advised of his Miranda1 rights; he invoked his right to counsel.
We understand from this record that although Alcotest equipment
was present, no breathalyzer test was administered at
headquarters. The record is not clear as to why that is so.
What we do know is that police personnel conveyed him to
Underwood Memorial Hospital so that a blood sample could be
obtained. At police request, hospital staff drew defendant’s
blood at 4:16 a.m. The record does not reveal any objection by
defendant to the invasive procedure. The requesting police
officer, a hospital nurse, and defendant each signed the
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
4
Certificate of Request to Withdraw a Specimen, but defendant’s
signature was affixed two minutes after the blood was drawn.2
Defendant was issued summonses for DWI, N.J.S.A. 39:4-50;
careless driving, N.J.S.A. 39:4-97; and possession of an open
container in a motor vehicle, N.J.S.A. 39:4-51a. On August 3,
2011, a grand jury also charged defendant with fourth-degree
assault by auto, N.J.S.A. 2C:12-1(c)(2), for recklessly
operating a motor vehicle while under the influence of alcohol
and causing bodily injury.
On April 17, 2013, the United States Supreme Court issued
its opinion in McNeely, supra, which held that the natural
metabolism of alcohol in an individual’s bloodstream does not
constitute a per se exigency under a Fourth Amendment search and
seizure analysis. ___ U.S. at ___, 133 S. Ct. at 1568, 185 L.
Ed. 2d at 715. In light of McNeely, on April 22, 2013,
defendant filed the pre-trial motion to suppress the blood test
results that is at the center of this appeal.3 Following a
hearing at which only defendant testified, the court granted
defendant’s motion, finding that the police did not demonstrate
2 We note that no argument has been advanced before this Court
that defendant consented to the blood draw.
3 In addition, defendant alleged a violation of his speedy trial
rights. That motion was denied and is not before this Court.
Also, we note that a previously filed motion to suppress the
blood test results based on discovery issues had been denied.
5
exigent circumstances before securing a sample of defendant’s
blood without a warrant.
The State appealed, and the Appellate Division reversed.
State v. Adkins, 433 N.J. Super. 479 (App. Div. 2013). The
panel explained that, prior to McNeely, New Jersey courts,
including this Court, had cited the United States Supreme
Court’s prior decision in Schmerber v. California, 384 U.S. 757,
86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), as support for the
warrantless taking of blood samples from suspected intoxicated
drivers, so long as the search was supported by probable cause
and the sample was obtained in a medically reasonable manner.
Id. at 482-83. The panel reasoned therefore that McNeely had
worked a dramatic shift in this State’s Fourth Amendment
jurisprudence and created a new rule of criminal procedure. Id.
at 484. The Appellate Division acknowledged that McNeely
ordinarily would be given “pipeline retroactivity” and would be
applied retroactively to all cases, federal or state, pending on
direct review. Ibid. However, citing Davis v. United States,
___ U.S. ___, ___, 131 S. Ct. 2419, 2434, 180 L. Ed. 2d 285, 302
(2011), the panel noted that federal law generally does not
apply the exclusionary rule when police conduct a search in good
faith reliance on previously binding precedent. Id. at 484-85.
Concluding that defendant’s blood sample would not be suppressed
under federal law, the panel determined that
6
the real issue here is whether, given the
federal retroactivity requirement, we should,
as the State argues, apply an approach
analogous to that set forth in Davis, or
whether, as defendant argues, the result here
is dictated by State v. Novembrino, 105 N.J.
95, 157-59 (1987), which rejected a “good
faith” exception to the application of the
exclusionary rule.
[Id. at 488.]
Ultimately, the panel held that the exclusionary rule should not
be applied in this matter. Id. at 492-93. In its reasoning,
the panel relied on State v. Harris, 211 N.J. 566 (2012), as
permitting exceptions to the exclusionary rule in limited
circumstances. Id. at 490-91. The panel emphasized that, as in
Harris, the exclusionary rule’s application would not serve as a
deterrent in this case because the police relied upon valid
precedent when conducting the search. Id. at 491.
Defendant filed a petition for certification, which was
granted by this Court. 217 N.J. 588 (2014). We also granted
amicus curiae status to the New Jersey State Bar Association
(NJSBA).
II.
A.
Defendant argues that the Appellate Division misconstrued
New Jersey law when it found that McNeely dramatically changed
this State’s Fourth Amendment jurisprudence. According to
defendant, neither federal nor New Jersey law recognized a per
7
se exigency exception for warrantless blood draws of drunk
driving suspects pre-McNeely; thus, the totality-of-the-
circumstances test always has been the appropriate standard.
Nevertheless, citing Wessells, supra, 209 N.J. at 411-12,
defendant adds that federal retroactivity principles require
application of McNeely to defendant’s case.
Importantly, on the issue of McNeely’s retroactive
application, defendant and the State agree.
Consistent with his view of the prior state of federal and
New Jersey law governing warrantless blood draws on the basis of
alcohol dissipation alone, defendant argues that the officers
were not following precedent when they procured his blood.
Therefore, defendant contends that the Appellate Division erred
in declining to apply the exclusionary rule in this setting. He
asserts that Davis, supra, ___ U.S. ___, 131 S. Ct. 2419, 180 L.
Ed. 2d 285, is inapplicable, drawing support for that argument
from the Supreme Court’s post-McNeely remand in Brooks v.
Minnesota, ___ U.S. ___, 133 S. Ct. 1996, 185 L. Ed. 2d 863
(2013). That case involved a conviction based on a pre-McNeely
warrantless blood test of a drunk driving suspect. Defendant
points out (1) that the Supreme Court’s remand signaled its
intent that McNeely be applied retroactively and (2) that the
Court remanded without any mention that Davis applied.
8
Finally, defendant asserts that the Appellate Division’s
decision is inconsistent with Novembrino, supra, 105 N.J. 95, in
which this Court declined to recognize a good faith exception to
the exclusionary rule. Defendant argues that applying the
exclusionary rule here furthers the rule’s purpose by protecting
an individual’s Fourth Amendment rights and preserving judicial
integrity through the exclusion of illegally obtained evidence.
Defendant distinguishes Harris, supra, 211 N.J. 566, noting that
Harris did not involve a warrantless search, and emphasizes this
Court’s statement in that case that it was not retreating from
Novembrino’s rejection of a good faith exception to the
exclusionary rule.
B.
The State concedes that McNeely should be given pipeline
retroactive application. The State’s arguments focus instead on
why it believes the exclusionary rule should not be applied to
suppress defendant’s blood sample.
The State relies on the principles established by the
United States Supreme Court in Davis, supra, which held that
“when the police conduct a search in objectively reasonable
reliance on binding appellate precedent, the exclusionary rule
does not apply.” ___ U.S. at ___, 131 S. Ct. at 2434, 180 L.
Ed. 2d at 302. The State submits that the outcome produced by
Davis on prior prosecutions is consistent with results reached
9
under a New Jersey retroactivity analysis when there is a change
in the law. The State requests that this Court adopt an
analogue to the Davis exclusionary-rule remedy, asserting that
there is no practical difference between exclusion of evidence
based on a retroactivity analysis premised on a change in law
and exclusion of evidence based on an exception to the
exclusionary rule.
The State further argues that although in Novembrino,
supra, 105 N.J. at 157-58, our Court specifically rejected the
good faith exception recognized in United States v. Leon, 468
U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), where the
evidence sought to be suppressed was obtained by a police
officer operating under the authority of a search warrant issued
by a judge without a sufficient basis for probable cause, the
Court has not rejected the good faith exception in all
circumstances. The State highlights Harris as demonstrating
this Court’s recognition that rigid application of the
exclusionary rule is neither constitutionally mandated nor sound
judicial policy in all circumstances.
The State adds that suppressing defendant’s blood samples
in this case will not further any of the purposes for the
exclusionary rule. Citing State v. Ravotto, 169 N.J. 227 (2001)
and State v. Dyal, 97 N.J. 229 (1984), the State argues that
although New Jersey courts have never explicitly used the term
10
“exigency per se” to describe their interpretation of the
Schmerber standard, it was universally understood that whenever
police had probable cause to believe that a driver was
intoxicated, they were authorized to obtain a blood test without
a warrant. Thus, deterrence of police misconduct is not present
here.
In sum, the State emphasizes that with McNeely there has
been a shift in New Jersey Fourth Amendment jurisprudence such
that a Davis good faith exception to the exclusionary rule’s
application is warranted in these circumstances.
C.
Amicus NJSBA agrees with defendant that McNeely did not
drastically change New Jersey’s Fourth Amendment jurisprudence
and that, therefore, no retroactivity or good faith analysis is
required. That said, NJSBA agrees with all other parties that,
if this Court finds that McNeely established a new rule of law,
federal retroactivity principles mandate that it be applied
retroactively to all cases in the pipeline, which includes this
case. Even under New Jersey retroactivity law, NJSBA asserts
McNeely would be applied to this case, noting that the purpose
of McNeely was to re-affirm the totality-of-the-circumstances-
based holding in Schmerber, and that “some reliance” by law
enforcement on a different and more indulgent view of the law in
New Jersey governing the exigency analysis when alcohol
11
dissipation is at risk does not preclude retroactive
application. Here the NJSBA contends that the State has not
demonstrated that retroactive application would be burdensome.
NJSBA further asserts that no good faith exception to the
exclusionary rule exists in New Jersey and that, were this Court
to adopt Davis, we would essentially reverse the holding in
Novembrino. NJSBA argues that the exclusionary rule serves dual
purposes, one of which is to vindicate the Fourth Amendment
right to be free from illegal searches, and to adopt Davis would
undermine that purpose.
III.
The United States Constitution and the New Jersey State
Constitution both guarantee the right to be free from
unreasonable searches and seizures. U.S. Const. amend. IV; N.J.
Const. art. I, ¶ 7. As the United States Supreme Court has
recognized, “a ‘compelled intrusio[n] into the body for blood to
be analyzed for alcohol content’ must be deemed a Fourth
Amendment search.” Skinner v. Ry. Labor Execs. Ass’n, 489 U.S.
602, 616, 109 S. Ct. 1402, 1412, 103 L. Ed. 2d 639, 659 (1989)
(alteration in original) (quoting Schmerber, supra, 384 U.S. at
768, 86 S. Ct. at 1834, 16 L. Ed. 2d at 918). “Because [this
Court’s] constitutional jurisprudence generally favors warrants
based on probable cause, all warrantless searches or seizures
12
are presumptively unreasonable.” State v. Johnson, 193 N.J.
528, 552 (2008) (internal quotation marks omitted).
Warrantless searches are “prohibited unless they fall
within a recognized exception to the warrant requirement.”
State v. Pena-Flores, 198 N.J. 6, 18 (2009). One exception to
that requirement is the presence of exigent circumstances.
Johnson, supra, 193 N.J. at 552. In assessing those
circumstances, relevant factors include: “the urgency of the
situation, the time it will take to secure a warrant, the
seriousness of the crime under investigation, and the threat
that evidence will be destroyed or lost or that the physical
well-being of people will be endangered unless immediate action
is taken.” Id. at 553 (emphasis added). Traditionally, no one
factor is dispositive and exigency must be assessed on a case-
by-case basis under a totality-of-the-circumstances standard.
See State v. Deluca, 168 N.J. 626, 632-33 (2001).
In the context of the exigent-circumstances exception, the
United States Supreme Court addressed the constitutionality of a
warrantless blood draw from a suspected drunk driver in its 1966
decision in Schmerber, supra, 384 U.S. 757, 86 S. Ct. 1826, 16
L. Ed. 2d 908. In Schmerber, the defendant was transported to
the hospital for the treatment of injuries sustained in an
automobile accident and was subsequently arrested on suspicion
of drunk driving. Id. at 758, 86 S. Ct. at 1829, 16 L. Ed. 2d
13
at 912. Without procuring a warrant, police directed hospital
officials to draw a sample of the defendant’s blood; that sample
was used to determine the defendant’s BAC level and, ultimately,
to convict him of driving an automobile under the influence of
alcohol. Id. at 758-59, 86 S. Ct. at 1829, 16 L. Ed. 2d at 912-
13. In finding the warrantless blood draw constitutionally
permissible, the Court concluded that although a warrant is
typically required for the taking of blood,
[t]he officer in the present case . . . might
reasonably have believed that he was
confronted with an emergency, in which the
delay necessary to obtain a warrant, under the
circumstances, threatened the destruction of
evidence[.] We are told that the percentage
of alcohol in the blood begins to diminish
shortly after drinking stops, as the body
functions to eliminate it from the system.
Particularly in a case such as this, where
time had to be taken to bring the accused to
a hospital and to investigate the scene of the
accident, there was no time to seek out a
magistrate and secure a warrant. Given these
special facts, we conclude that the attempt to
secure evidence of blood-alcohol content in
this case was an appropriate incident to
petitioner’s arrest.
[Id. at 770-71, 86 S. Ct. at 1835-36, 16 L.
Ed. 2d at 919-20 (citation omitted) (internal
quotation marks omitted).]
The Schmerber Court added that the defendant’s blood was drawn
by a reasonable method and in a reasonable manner. Id. at 771,
86 S. Ct. at 1836, 16 L. Ed. 2d at 920.
14
Following Schmerber, courts were not in universal agreement
on whether the decision created a rule that the dissipation of
alcohol constituted a per se exigency justifying a warrantless
search. Compare State v. Shriner, 751 N.W.2d 538 (Minn. 2008)
(per se rule), cert. denied, 555 U.S. 1137, 129 S. Ct. 1001, 173
L. Ed. 2d 292 (2009), State v. Machuca, 227 P.3d 729 (Or. 2010)
(per se rule), and State v. Bohling, 494 N.W.2d 399 (Wis. 1993)
(per se rule), cert. denied, 510 U.S. 836, 114 S. Ct. 112, 126
L. Ed. 2d 78 (1993), with State v. Johnson, 744 N.W.2d 340 (Iowa
2008) (no per se rule), and State v. Rodriguez, 156 P.3d 771
(Utah 2007) (no per se rule). To resolve the split in authority
over the application of Schmerber, the Supreme Court granted the
State of Missouri’s petition for certiorari in McNeely, supra,
___ U.S. at ___, 133 S. Ct. at 1558, 185 L. Ed. 2d at 703. In
that case, the State of Missouri argued that “the fact that
alcohol is naturally metabolized by the human body creates an
exigent circumstance in every case.” Id. at ___, 133 S. Ct. at
1567, 185 L. Ed. 2d at 713-14. On appeal, Missouri did not rely
on any other factor in support of its claim that exigency for a
warrantless draw of blood had been established. Ibid.
In McNeely, the Court stated that Schmerber never created a
per se rule but, instead, had incorporated a totality-of-the-
circumstances test and had applied that test when assessing the
facts presented in Schmerber. Id. at ___, 133 S. Ct. at 1558-
15
60, 185 L. Ed. 2d at 704-06. The McNeely Court held that that
same totality-of-the-circumstances test remains applicable
whenever a court must assess for exigency in the circumstances
of a warrantless search of a person suspected of driving under
the influence, stating plainly that,
while the natural dissipation of alcohol in
the blood may support a finding of exigency in
a specific case, as it did in Schmerber, it
does not do so categorically. Whether a
warrantless blood test of a drunk-driving
suspect is reasonable must be determined case
by case based on the totality of the
circumstances.
[Id. at ___, 133 S. Ct. at 1563, 185 L. Ed. 2d
at 709 (emphasis added).]
Thus, the Supreme Court put to rest any ambiguity that existed
following Schmerber: dissipation of alcohol from a person’s
bloodstream is not the beginning and end of the analysis for
exigency in all warrantless blood draws involving suspected
drunk drivers. Rather, courts must evaluate the totality of the
circumstances in assessing exigency, one factor of which is the
human body’s natural dissipation of alcohol.
The present question before this Court is McNeely’s
application to the warrantless drawing of defendant’s blood,
which occurred prior to McNeely’s issuance.
IV.
In Wessells, supra, we recently addressed “both the meaning
of and the retroactive effect to be given to [a] decision of the
16
United States Supreme Court.” 209 N.J. at 397. In reviewing
the question of retroactivity, we noted that “federal
retroactivity turns on whether a new rule of law has been
announced, coupled with an analysis of the status of the
particular matter, that is, whether it is not yet final, is
pending on direct appeal, or is being collaterally reviewed.”
Id. at 411. Our holding in Wessells recognized that if a new
rule has been established “for the conduct of criminal
prosecutions” it will “be applied retroactively to all cases,
state or federal, pending on direct review or not yet final,
with no exception for cases in which the new rule constitutes a
‘clear break’ with the past.” Id. at 412 (quoting Griffith v.
Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d
649, 661 (1987)). Accordingly, we applied in Wessells a new
rule of law, concerning invocation of the right to counsel and
the procedure for a suspect’s continued interrogation, that had
been established in Maryland v. Shatzer, 559 U.S. 98, 130 S. Ct.
1213, 175 L. Ed. 2d 1045 (2010), to a case pending review in New
Jersey at the time the decision was handed down. Id. at 413.
As the Appellate Division found, and defendant and the
State acknowledge, this case calls for a similar result under
federal retroactivity law. The decision in McNeely may have
been couched in terms that clarified Schmerber’s intent –-
namely, that Schmerber envisioned a totality-of-the-
17
circumstances test would be applied in the review of warrantless
blood draws of suspected DWI drivers and that the natural
dissipation of the blood evidence would not establish per se
exigency -- but the McNeely Court nevertheless recognized that
there was sufficient cause to grant certiorari to resolve an
unsettled area of law, noting the split of authority around the
country. McNeely, supra, ___ U.S. at ___, 133 S. Ct. at 1558,
185 L. Ed. 2d at 703. In that respect, the decision represents
new law settling an area of criminal practice. Under federal
retroactivity law, the decision deserves pipeline retroactive
application. The United States Supreme Court has pronounced the
standard to be applied under the Fourth Amendment to warrantless
searches involving blood draws of suspected DWI drivers and,
under Supremacy Clause principles, we are bound to follow it as
the minimal amount of constitutional protection to be provided.
Therefore, in accord with the practice followed in
Wessells, supra, 209 N.J. 395, we hold that the Supreme Court’s
decision in McNeely applies retroactively to cases that were in
the pipeline when it was decided.
That said, the parties differ on whether the exclusionary
rule should have any applicability in suppressing defendant’s
blood test results when the police merely followed an asserted,
commonly held understanding of Schmerber’s requirements in this
State. Indeed, as defendant notes, following McNeely, the
18
Supreme Court granted a writ of certiorari in Brooks, supra, ___
U.S. at ___, 133 S. Ct. at 1996, 185 L. Ed. 2d at 863-64, a case
involving a warrantless blood test of a drunk driving suspect,
and the Court summarily vacated and remanded the decision of the
Minnesota Court of Appeals. Defendant cites Brooks as support
for his view on the intended pipeline retroactivity of McNeely.
V.
Our Court is among those that have declined to recognize
the exception to the exclusionary rule that was first
established in Leon, supra, 468 U.S. 897, 104 S. Ct. 3405, 82 L.
Ed. 2d 677.
In Novembrino, supra, we rejected a good faith exception to
the exclusionary rule, relying on Article I, Paragraph 7, of the
New Jersey Constitution. 105 N.J. at 158-59. In not following
the path recognized by Leon, our Court took the view that the
good faith exception would, over time, “tend to undermine the
motivation of law-enforcement officers to comply with the
constitutional requirement of probable cause.” Id. at 152. The
Novembrino Court concluded that suppressing evidence seized
pursuant to invalid warrants would safeguard the integrity of
the process by which warrants are sought and issued. Id. at 154
(“Our view that the good faith exception will ultimately reduce
respect for and compliance with the probable-cause standard that
we have steadfastly enforced persuades us that there is strong
19
state interest that would be disserved by adopting the Leon
rule.”).
Our State has consistently rejected a good faith exception
to the exclusionary rule. Post-Novembrino, our Court’s
adherence to its holding has remained steadfast and is not
undermined by our recent conclusion in Harris.4 In Harris,
supra, we determined that the exclusionary rule was ill-suited
to the specific circumstances of evidence secured pursuant to a
warrant issued based on a “reasonable cause” standard utilized
in the Prevention of Domestic Violence Act where the illegal-on-
sight nature of the seized evidence was immediately apparent.
211 N.J. at 580, 587, 590 (noting that police did not engage in
misconduct, did not err in execution of warrant, or disregard
warrant’s parameters). Importantly, we cautioned that the
determination “should not be understood . . . as retreating
from” the Court’s “earlier rejection of the good faith
exception” in Novembrino. Ibid.
Although the Appellate Division has applied a good faith
approach to alterations in case law when engaging in a
4 To the extent that the parties identify pre-Novembrino case law
in which the Court relied, in part, on the good faith of
officers following the law in declining to exclude evidence, we
observe that each of those earlier cases dealt with evidence
procured in connection with a statute later declared to be
unconstitutional. See, e.g., State v. Zito, 54 N.J. 206, 210
(1969) (citing State v. Gerardo, 53 N.J. 261 (1969)).
20
retroactivity analysis under New Jersey law, see, e.g., State v.
Skidmore, 253 N.J. Super. 227, 232-34 (App. Div. 1992)
(declining to exclude evidence found in search of defendant’s
garbage, notwithstanding that search’s procedure did not comply
with subsequent decision in State v. Hempele, 120 N.J. 182
(1990)), this Court has never before embraced such an expansive
approach to the exclusionary rule. Cf. State v. Broom-Smith,
406 N.J. Super. 228, 238 n.4 (App. Div. 2009) (distinguishing
Novembrino by focusing on its emphasis on safeguarding probable-
cause standard, stating “[u]nlike Novembrino, this aspect of the
case does not implicate a lack of probable cause for issuance of
the warrant and does not implicate the same policy concerns
underlying the Court’s rejection of the good faith doctrine”),5
aff’d, 201 N.J. 229 (2010).
In this matter we deal specifically with police conduct in
reliance on case law in New Jersey that led law enforcement to
the reasonable conclusion that the natural dissipation of
alcohol from the human body created exigency sufficient to
dispense with the need to seek a warrant. Although our
decisions never expressly pronounced an understanding of
5 The panel also relied on Rule 3:5-7(g), which provides that no
search conducted pursuant to a search warrant containing
“technical insufficiencies or irregularities” shall be deemed
unlawful. Broom-Smith, supra, 406 N.J. Super. at 238 (citing
Novembrino, supra, 105 N.J. at 130 n.15).
21
Schmerber that per se permitted warrantless blood draws in all
cases on the basis of alcohol dissipation alone, case law
contains language that provides a basis for such a belief. See
Ravotto, supra, 169 N.J. 227; Dyal, supra, 97 N.J. 229.
In Ravotto, supra, while focused on the reasonableness of
the force used by the police in procuring a blood sample, the
Court noted that “consistent with Schmerber and our analogous
case law, the dissipating nature of the alcohol content in
defendant’s blood presented an exigency that required prompt
action by the police.” 169 N.J. at 250. In Dyal, supra, this
Court addressed the application of the patient-physician
privilege to the admission of the results of a BAC blood test.
97 N.J. at 231. In that factual context, this Court noted that
“the encounter between a patrolman and a drunken driver often
arises in the context of an emergency,” that “[o]ne crucial
consideration is that the body eliminates alcohol at a rapid
rate,” and that “police, while coping with an emergency, should
not be obliged to obtain a search warrant before seeking an
involuntary blood test of a suspected drunken driver.” Id. at
239-40 (referencing Schmerber generally throughout). The Court
added the more pointed statement, untethered to the specific
facts therein presented, that “[a] drunken driver arrested by
police with probable cause to believe he is intoxicated has no
federal constitutional right to prevent the involuntary taking
22
of a blood sample.” Id. at 238.6 The Supreme Court has now
clarified the appropriate test to be applied to warrantless
blood draws, and we will adhere to that test without any
superimposed exception. That said, we accept that our case law
played a leading role in dissuading police from believing that
they needed to seek, or explaining why they did not seek, a
warrant before obtaining an involuntary blood draw from a
suspected drunk driver. With that in mind, we return to the
touchstone of the Fourth Amendment -- reasonableness. State v.
Bruzzese, 94 N.J. 210, 217 (1983).
In holding that we shall retroactively enforce the Supreme
Court’s declaration that the totality-of-the-circumstances
examination applies to all blood draws from suspected drunk
drivers, we hold further that law enforcement should be
permitted on remand in these pipeline cases to present to the
court their basis for believing that exigency was present in the
facts surrounding the evidence’s potential dissipation and
6 We note that there has not been uniformity among the Appellate
Division panels in their interpretation of this Court’s
jurisprudence. Compare State v. Woomer, 196 N.J. Super. 583,
586 (App. Div. 1984) (quoting Dyal, supra, 97 N.J. at 238 for
proposition that drunken driver “has no federal constitutional
right to prevent the involuntary taking of a blood sample”),
with Jiosi v. Twp. of Nutley, 332 N.J. Super. 169, 179 (App.
Div. 2000) (noting that Schmerber “did not provide a carte
blanch exception to the warrant requirement whenever there is
probable cause to believe a suspect is under the influence of
alcohol or drugs”).
23
police response under the circumstances to the events involved
in the arrest. Further, the exigency in these circumstances
should be assessed in a manner that permits the court to ascribe
substantial weight to the perceived dissipation that an officer
reasonably faced. Reasonableness of officers must be assessed
in light of the existence of the McNeely opinion. But, in
reexamining pipeline cases when police may have believed that
they did not have to evaluate whether a warrant could be
obtained, based on prior guidance from our Court that did not
dwell on such an obligation, we direct reviewing courts to focus
on the objective exigency of the circumstances that the officer
faced in the situation.
VI.
The judgment of the Appellate Division is reversed and the
matter is remanded to the trial court for further proceedings
consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-
VINA and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE LaVECCHIA’s opinion.
24
SUPREME COURT OF NEW JERSEY
NO. A-91 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY ADKINS,
Defendant-Appellant.
DECIDED May 4, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7